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The Supreme Court of Appeals.
Ben Bezuidenhout, GroundUp, Wikimedia, archive
- The Supreme Court of Appeals has ruled in favor of the Minister of Public Works in the case against Roux Property Fund of businessman Roux Shabangu.
- The court has found that the Shabangu company was slow to notify its intention to initiate a lawsuit against the minister claiming millions in damages.
- The court issued the ruling this week.
The Supreme Court of Appeals has confirmed an appeal against a judgment of a higher court that condoned the company of the businessman Roux Shabangu, Roux Property Fund, for not notifying in a timely manner the intention to initiate a process against the Minister of Public Works, claiming compensation of 350 million rand.
The SCA issued a ruling this week.
“The action was based on the alleged repudiation by the Department of Public Works of the lease of a building in the city center in Pretoria to serve the SAPS,” read court documents.
The lease was signed in 2010 with the inclusion of two addenda, extending the start of the lease and increasing the rent.
However, the department did not occupy the premises in April 2011 and refused to pay the rent.
This resulted in Shabangu’s company defaulting on its obligation to Nedbank, which had a mortgage on the property.
“Nedbank executed the mortgage and sued the defendant for the outstanding amount. As a result, the building was sold.”
Shabangu brought an action against the minister in August 2014, but did not give the advance notice required by Section 3 (1) of the legal proceedings against certain state organs.
The Gauteng High Court granted the discharge, but also gave the SCA permission.
READ | Entrepreneur Roux Shabangu Welcomes Bheki Cele’s Trial
In October 2014, the minister filed a special pleading requesting that the claim be dismissed and alleging that notice had not been given in time and that a request for forgiveness had not been submitted.
However, the SCA found that Shabangu had done nothing about it until it sought remission in an application that began in 2017.
The court said the department was hurt by this failure. He was also dissatisfied with Shabangu’s evidence that there was good cause for not being notified in time as required.
The court said that, in October 2014, when the special allegation was filed, Shabangu had learned that the minister relied on non-compliance with the provisions of Section 3 of the law.
“One would have expected [Shabangu’s company] to file a request for forgiveness immediately, “he said, adding that instead, he was delayed more than three years.
“The defendant does not explain why it took more than three years before he could file the discharge request and what efforts he took to expedite the claim.”
According to the ruling, the minister had also indicated that the officials who participated in the negotiation and conclusion of the lease were no longer at the service of the department.
The minister also argued that if the request were granted, the department would be harmed by conducting the trial without its key witnesses who have since been removed.
“Long litigation delays are not in the best interest of justice, as witnesses’ memories can fade, documents can be lost, and management changes can lead to high turnover of senior staff.
“Consequently, the defendant has failed to convince the court that the plaintiff has not been unreasonably harmed by failing to deliver notice on time,” the court ruled.
The appeal with costs was upheld and the company’s action was dismissed.
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